82 Miss. 669 | Miss. | 1903
delivered, the opinion of the court,
The finding of the circuit judge on the disputed question of fact on the hearing of the motion to dismiss the appeal from the justice of the peace court will not be disturbed. The approval of the justice of the peace indorsed on the appeal bond showed that it had been filed in due time. The fact that he did not write his approval on the paper until after the expiration of the five days allotted by law does not alter the legal status. If, as the circuit judge decided, the bond was tendered the justice of the peace in due time, the names of its sureties read to him, their sufficiency unquestioned, and his approval of the bond stated, this was a legal filing, which he could not afterwards invalidate. It was the duty of the circuit court to see that when the law has been substantially complied with the rights of litigants are not prejudiced by technical errors of the inferior court, whether accidentally or intentionally committed. Robinson v. Mhoon, 68 Miss., 712, 9 South., 887; Swain v. Gilder, 61 Miss., 667.
Upon, the merits but one question worthy of consideration is presented by the record: Can the vendee of the tenant, under the facts here, recover the boiler in question from the purchaser at trustee sale of the landlord’s title ? In our opinion, a statement of the facts is an answer to the inquiry. Appellants claim title under foreclosure of a trust deed executed in 1897. After the execution of the trust deed the boiler conveyed thereby, described as an “Erie Pennsylvania” boiler, became worn out and worthless. The landlord refused to purchase a new boiler, which was necessary to the prosecution of the business conducted on the leased premises, whereupon the tenant procured the boiler now in question, described as a “Cleveland and Hard-wick Eire Box Boiler,” and attached it to the machinery used in the slaughter house, disconnecting the old boiler, but leaving if on the premises. This placing of the boiler was with full knowledge of the landlord, and under a distinct and undenied
Appellants contend that, as the boiler was annexed to the other machinery composing the plant in the slaughter house, and was by steam pipes and other necessary attachments connected to the boiler house, it, by operation of law, became a fixture and part of the realty, and as such passed with the land. The doctrine contended for has no application. We recognize and adhere to the general doctrine of fixtures, which is well established and understood, but we also adhere to the exception in favor of tenants and of trades and manufactures, which is as well established and defined. This case is controled by the case of McNath v. Levy, 74 Miss., 450, 21 South., 9, 523. The question of fact as to the identity of the boiler was fairly submitted to the jury, and the law was correctly announced in the instructions of the court.
Affirmed.
